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News about Divorce Law in New York State
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Articles on New York Divorce LawRecent Entries
Oct 2023 What is a Postnuptual Agreement?Jun 2023 Fathers' Rights in New York Jan 2023 Family Law and Estate Planning Dec 2021 Can I withdraw my Divorce? Custody Decisions: Remote verses actual attendance? September 12, 2020
New York City has been the epicenter of the COVID-19 virus and this is had an extreme impact on child custody cases in New York. As parents ready themselves to take the children back to school, parents involved in a child custody or divorce case are up in arms against each other when having to decide whether learning will be remote versus in person versus a blended curriculum. The Family Court and the Supreme Court in child custody cases and divorce cases involving children are very anxious to have children back in school for variety of reasons. One of such reasons is that children need socialization as well as education. This issue has caused an uproar in Family court because many times the parents cannot agree on how to venture forth with the education of their children. In cases where custody is at issue and where both parties await a judicial determination after trial as to decision making, The courts are often faced with motions by one or the other of the parents to determine temporary legal decision making with respect to the above decision as to schooling. The arguments for and against remote learning versus in person learning are obvious. Some parents prefer that the children study at home, especially if they do not agree that the schools taking adequate precautions to ensure the safety of the children. Other parents, particularly those of younger children, have concerns that keeping the children at home will deprive them of the socialization that they need to move forward in their lives and in their education. COVID-19 has challenged families in ways that they can never imagine. Family court is likely to see a surge of cases because of the re-opening of New York schools this month. Moreover, we will see a challenge to court orders affecting child support and spousal support due to a potential payor’s loss of income. Another problem that is anticipated in Family Court in New York is that it will take a considerable amount of time before the Family Court and the Supreme Court get back to a regular schedule. The mandated closures of the courts have caused a backlog and judges are reviewing cases that take precedence over other cases that have more serious issues at stake. As a result, thereof, parents are using self-help whereby one parent in enrolls the children in remote learning classes only to find out that the other parent has unenrolled the children from the remote learning classes. Try to arrive at a solution or compromise or the court might do that for you, Child custody cases are overly complicated. However, with the onset of COVID-19 now, more than ever, it is important that parents utilize mediation and use common sense to sort out their differences. It is highly unlikely that the court system will be able to attend to all the cases that have this pressing issue prior to the opening of schools in September 2020. Another issue the courts face in Family Court is the fact that the courts are now accepting new filings and petitions based upon a change in circumstances due to COVID-19. Courts will accept petitions but there may be a time lag before you are heard, absent an emergency. Moreover, the courts expect the parties to use common sense and will not let the parties use Covid as an excuse for not obeying court orders. As to existing child custody and visitation agreements or court orders, the courts are expecting the parties not to violate these orders. In fact, the police are enforcing these orders even though one parent or the other might have a good reason to protect her child from the spread of the disease.
other issues that have arisen have to do with the employment of one party versus the other. If one of the parties is an essential worker and has to go to work in a hospital and is potentially exposed to COVID-19, the other party might see this as a risk to the child and make a motion to the court for protective order or for a change in custody. These motions have a mixed result. Some courts do not wish to punish the parent who is a front line worker while other courts put the children’s best interest first, as they should, and change custody to the parent who is the least at risk. To conclude, the unprecedented hardship caused by COVID-19 to our court system will not be remedied quickly. However, the courts are taken great strides to write the wrongs that have been caused by COVID-19. For more information go to www.nycdivorcelawyer.net.
By: Lisa Beth Older, your Manhattan custody lawyer Get Outlook for iOS What if my spouse is turning our children against me? March 12, 2020
Parental alienation has a huge impact on child custody cases
The New York courts considers parental alienation in its decision as to which parent shall obtain custody over children. When a quart feels that a child is refusing to have any relationship whatsoever with the other parent a quart then explores reasons as to why that is happening. In the absence of and fitness or abuse it is not unreasonable to imagine that parental alienation is occurring. The courts take parental alienation very seriously. The concept of parental alienation is not straightforward and at one time was discredited. However, the term parental alienation is seeing a comeback in the courts and has found new scientific legs upon which to support the theory.
If, for no apparent reason, your child is no longer talking to you or is expressing hatred towards you, the chances are the other parent could be saying bad things about you to the child. In other words, the child is merely mirroring that parent’s hatred of the other parent. Parental alienation often occurs in the middle of a divorce case. However, it can also occur under other circumstances. If children are around too many negative statements made by one parent about the other parent, they experience something called parental alienation. There are experts in the field who can ascertain whether the child is being alienated against one parent. For instance, when a child displays anger and fear not grounded in any rational basis these feelings of anger are usually planted in the head of the child by the opposite parent. This psychological twisting of a child is detrimental to the child and his or her family relationships because children try to trust and need to rely upon both parents in order to develop in a healthy manner, but when one parent poisons the child against the other parent it is not only detrimental to the child but it can also have dire consequences on the injuring party's case.
It unjustifiably causes the child to have negative feelings toward the aggrieved parent. An example of parental alienation is when a parent blames the other parent by having an adult conversation with the child as to the finances of the parties and why they cannot longer enjoy certain activities they used to enjoy prior to the divorce, y blaming the child’s lack of enjoyment of said activities on the fact that the other parent is the bad guy. Sometimes this happens purposefully and many times I see it happen unintentionally, but it can happen nevertheless and should be voided in any New York Custody case. Any good Manhattan Custody lawyer will warn against it and will be on the lookout for it. There is a lot of case law that developed in the state of New York that deals with parental alienation. One of the accepted principles of law is called interference with the noncustodial parent's relationship with the child. If the court finds that one spouse has intentionally interfered with the relationship of the child and the noncustodial parent, the court finds that that parent is per se unfit to parent. You can imagine the consequences of this in a custody case that goes to trial. The lesson from all of this to be learned is do not speak badly about the other parent in front of your child. If you need to speak badly about your spouse, hire a therapist to vent or speak to a friend or another adult. Involving a child in your divorce and financial problems is the worst possible thing you can do for your child and will likely have negative consequences in your case.
If you feel that your spouse has alienated your child against you, then argue in court that you have been the victim of intentional alienation and that as a result your spouse should not be awarded custody. It is a very strong case, but it’s also a difficult one to prove without expert testimony. If you suspect that you are a victim of parental alienation, then ask your attorney to request the appointment of an attorney for the child and forensic evaluations of the parties. After all parties and the children have been interviewed, if the forensic evaluator feels there are sufficient facts for showing a parental alienation, this factor will play a large role in what the judge will do in your New York custody case. By: New York divorce lawyer Lisa Beth Older Can I sue for Adultery? March 21, 2019
As a New York Divorce Lawyer, my clients ask me oftentime whether aultery is still a crime in New York State and whether they can sue their spouse for cheating on them. This article is designed to lend clarity to this issue because spouses that are hurt by a cheating spouse need answers to this. Penal law section 255.17 states that you can be found guilty of adultery if you or your spouse has sexual intercourse with another person during that time that you are married. However, you cannot actually depend on the State to prosecute anyone for adultery because the state of New York usually does not act against the perpetrator. There have been only approximatley 13 convictions for adultery over the last forty odd years and these convictions were attendant to and related to other more serious underlying crimes. This is because New York chooses not to prosecute adultery as a crime as a matter of public policy. As for divorce in New York we have several grounds upon which to seek a divorce and again, one such ground is adultery. So, you can still sue for adultery but that does not always mean you will prevail because there are higher standards of proof that must be met for divorce courts you get you relief under those grounds. Also, while you can sue for adultery, since New York State has added irretrievable breakdown of the marriage as a ground for divorce the courts favor this as ground and you will be encouraged to proceed forward on this ground because it alleviates the court from having to have a trial on grounds. This is encouraged because, quite frankly, grounds no longer impact decisions on equitable distribution and support and child custody unless the factual basis of said act is so severe and egregious that it warrants special equitable relief. For instance, for adultery to form a basis for any part of an equitable distribution award, you will have to prove in court that the adultery directly impacted that economic issue. An example of this might be that the cheating spouse may have spent some or all the marital assets on his or her paramour. In that instance a court will make an allowance for that amount and in its discretion try to reward the aggrieved spouse that amount which was spent on the extramarital affair. Another example as to how adultery might affect a divorce is has to do with custody. If the adultery was committed in a careless manner in front of the children or in an explicit manner and as such had an upsetting direct impact on the children, then a court might consider that as one of a myriad of factors in its determination as to what custodial arrangement would be necessary in the best interests of the children. Usually, however, a mere affair will not alter the way a court arrives at a custodial award. Accordingly, if you are staying married because your spouse threatens that you will be punished for your adulterous act it is probably not a good reason. Most New York Courts do not concern themselves with grounds when making rulings for support, custody and distribution of property and it will probably have no impact on the result of your New York Divorce and your New York Divorce Lawyer will likely so advise. If after reading this article you are still convinced that you want to sue for divorce on the ground of adultery, then you must realize that you have a higher standard of proof. You can not just take the stand and tell the Judge you believe your husband or wife had an affair. Rather, in providing adultery you must have a witness other than yourself testify in a compelling manner that your spouse had sexual relations with a person outside the marriage and usually that person will be an investigator with corroborative media evidence such as a video or photographs of the spouse during the act. There are also defenses that your spouse can raise against an adultery allegation such as the fact that you might have agreed to an open marriage where both spouses agreed to extramarital affairs, you might have forgiven your spouse, or you might have cheated on your spouse as a form of revenge. So, while New York Courts will still hear your case on the grounds of adultery, it is a cumbersome and costly process that involves airing your dirty laundry in a court of law and is unnecessarily expensive. To conclude if you are looking to file for a New York divorce then the best grounds to precede on would be a no-fault divorce, or irretrievable breakdown of the marriage. Using this ground no proof is required to be had, and the plaintiff merely alleges and states that the marriage has broken down for a period of in excess of six months. WHAT DO I TELL THE KIDS? January 17, 2019
Getting a divorce in New York? What do I tell the kids? It is important that you keep your children in the loop about all life changing circumstances such as a change in school, a change in residence or a change in teachers. So, it is not surprising that parents should inform their children about their change in marital status. Depending upon their age, children are smarter and more attuned to their environment then you might guess. Children may even know that you and your spouse are headed toward a divorce. Even so, you should prepare the children well in advance of the move. Sit down with the children at an appropriate time and do so as a couple if at all possible. The children need to see you are united in your decision. Spend a sufficient amount of time talking to them and listening to their concerns. It is important to stress that you love them at that nothing will change that. However, it is also important to listen to them. They will most likely have a lot of questions for you and you might expect them to ask about where they will live and who will be taking care of them. Expect that the children will have questions of worry or concern. Address them with assurances. Also expect the unexpected questions because children have their own ideas about what a divorce will look like because often times, they have had talks with their friends who have had very different experiences with divorce. Also set aside other quiet times to go over with the children what a divorce means. If one or the other parent is relocating it is important to let the children know how that relocation will affect their lives and their access to each parent. You should also be talking to other critical persons in the lives of the children such as their doctors, their school teachers and their summer camp counselors or therapists. Everyone should work as a team to explain how scheduling will work so that the children will know well in advance as to who will be expected to drive the children to their various appointments and who will attend what activity recital or event. Garnering the support of those people in their lives will help the children in their post-divorce transition. In my experience it is best if the parents can co-parent the children. Not only is this favored by the New York Courts, it is also very healthy for the children to know that both parents will remain active in their lives. Before you and your spouse sit down to talk with the children is important that you and your spouse talk to their respective New York divorce lawyers about scheduling access and visitation time. Children like structure and need to know what to expect once the household composition changes. Once the household becomes two households, things get very expensive. You should talk to your divorce lawyer about how child custody issues will affect your pocket book and budget, and who will be expected to pay for extracurricular activities. If you can, do not disrupt the activities the children are already involved in as this will tend to put stress upon the children. In my experience, children are children and should not be involved in the problems of financing their lives. In New York extracurricular activities are nonmandatory add-ons to child support so you and your spouse should decide in advance as to what activities are affordable and wo will be paying for them. Do not unilaterally schedule an activity and then expect your spouse to approve and pay for it. By co-parenting that means discussing what is in the best interests of the children and making decisions form them together as it concerns religion, medical attention and education. Even if the child is residing primarily with one parent the law favors liberal contact with the noncustodial spouse for a reason-the child need both parents, absent a showing of unfitness to parent. The end result is that if you work together as parents and try not to fight in front of the children the children will not feel like they have to take sides which is known to be detrimental to the children’s best interests. It is generally easier said then done but it is the best possible course if you wish your children to adjust to their post-divorce life. I hope this has been helpful. Your Bronx Child Custody Attorney, Lisa Beth Older. DO I NEED A LAWYER IN FAMILY COURT December 30, 2018
DO I NEED A LAWYER IN FAMILY COURT? It is not required that you retain a NY divorce lawyer or NY Family Law Lawyer to go to Family Court or to prosecute your divorce in Supreme Court in a New York Divorce Case, but here is why it is advisable to do so. Family Court is user friendly if you think you can settle your case and if there is not too much animosity between the parties. However, all proceedings are still legally binding upon you and your case will proceed forward in a manner in which you are not familiar. When you hire a family court or divorce lawyer these attorneys usually have had experience in these matters and can guide you through each step of the way. Each court appearance matters, from the way you dress to the way you conduct yourself in court. A family law lawyer will let you know what to expect at each stage of the proceeding. The lawyer will know how to file pleadings on your behalf, research the applicable law and how it bis favorable to your case and explain to you what a court will likely do or not do given certain facts and circumstances. You do not have this advantage when you represent yourself. Moreover, the case will normally result in a fact finding or trial where you will be required to call witnesses and present evidence in a manner required under the New York evidentiary rules so if you are not familiar with trying a case you will find it very frustrating to try to get the court to consider your proffered evidence. Also, sometimes the other side might make a motion to dismiss and you may have legal grounds to contest that motion but because you do not have a lawyer to argue your case knowledgably, aggressively and professionally the court might dismiss your case. Lastly, when the Judge rules on your case it is a binding decision that will have far reaching consequences on your life and your children. Moreover, if your spouse or parent of a subject child hires a lawyer you will be at a lose as to how to prosecute your case. If you are indigent or a low wage earner you should ask the court if they can appoint a free lawyer for you. In custody cases in New York you have an absolute right to be represented by counsel so if the court does not appoint a free lawyer then make an application to the Judge to have the other side pay for a lawyer and for all costs associated with litigation of your case, such as forensic reports and risk assessment studies. CHANGES IN DIVORCE LAW December 27, 2018
CHANGES IN DIVORCE LAW As 2019 rapidly approaches, I thought it would be a good time to revisit changes to the law and be sure the proposed papers necessary to get a divorce judgment are up to date and contain the proper language. Another change was put into effect by Administrative Order that revised forms having to so with income withholding Orders for temporary and disability assistance. These new forms went into effect on August 31, 2018. This change also highlights that unless the parties opt out and provide an alternate way to receive support, the court must order an income withholding order. This Order amends two forms, one for child support and maintenance combined and the other affects income withholding on child support cases only. All of said forms must be submitted with your divorce closing documents and may be found at www.nycourts.gov/divorce. There, you will find all applicable forms as well as detailed instructions as to how to fill out these forms. It is very difficult to fill out these forms so it is advisable to seek legal counsel to conclude your divorce, in this writer’s opinion, and nothing contained in this article should be construed as legal advice. On the above website provided by New York Gov’s website you will also find cakculators designed to give you an idea as to how much child support and spousal support you may have to pay to your spouse. These calculators are found here. It is important to note that these numbers are presumptively correct but that the court has the ultimate right to amend these numbers as equity demands. There are many factors that go into an analysis as to whether or not he court will either stick to these guidelines or deviate therefrom so you should become familiar with these factors before embarking up on a divorce because they are very complicated and have far reaching consequences to your case.
This article is not legal advice and you should thus consult with a NY divorce lawyer before embarking upon a divorce case or support or custody case.
Family Offense December 7, 2018
Family Offense Proceedings are difficult because it means filing a petition against a family member or intimate partner when you have been the victim of a crime perpetrated against you. The results you want to achieve from filing a Family Offense petition is an Order of Protection. You generally go to Family Court for relief but you can also file for relief in Supreme Court if you are in the middle of a divorce case. There are many Order of Protection because the Court may fashion it with its own terms and conditions. Usually you can go to family court on your own and go to the intake part and fill out a petition. You will also be asked to fill out a vital statistics form giving the court general information such as your name, address, social security and dates of birth of all those members of the family that are involved in your case. If you do not have a New York Family Lawyer then you can file the petition on your own with the help of a Family Court Clerk. You will be seen by the Court immediately and will be asked to explain the circumstances as to why you need an Order of Protection. Be sure your Family Offense Petition lists the crimes perpetrated upon you with a high level of specificity such as dates, times, injuries sustained and the nature of the offense. If you have pictures that demonstrate the injuries bring them with you. If the fear of harm rises to a certain level the Court will usually award your order of Protection that day and adjourn the case so you have an opportunity to serve the perpetrator. When you come back to court be prepared to bring an Affidavit of Service proving you have served the petition and Order of Protection properly. Next, the court will generally continue the order of protection and give you a court date for a hearing and trial. You must also realize that you can go to the police and make a police report and if the crime is serious the police will arrest the family member that poses a risk of harm to you You can have two cases going at the same time and you can also get an Order of Protection from Criminal Court.
Can I apply for Custody? October 29, 2018
Can I apply for child custody? There are many things you need to know before you can apply for child custody in New York. For one, a court must have the power to adjudicate your case. We call that “jurisdiction”. This is a complex idea of law that involves many factors but the initial inquiry is for a judge is where the children have lived for the past six months, and whether there is a prior order of custody in place. As for the six-month rule, if there has been no prior order of any court from another State, then New York would have jurisdiction to hear your case if the children have resided in New York State for the last six months. If the children were born in New York but are infants under the age of six then New York usually has the power to adjudicate your case. However, if the parties have permanently moved to another state with the children then the parties can apply for custody in that state. Custody is neutral gender, in other words, either of the parties may seek custody of their children. Usually, the court will decide temporarily as to where the children will live until the final determination after a fact-finding hearing or trial. Usually the lawyers will argue in court that the children should stay with the parent with whom they currently reside except for extenuating circumstances such as unfitness to parent, domestic violence or drug abuse. But a temporary Order does not necessarily mean the court will not order something else after a trial. That is why the behavior of the litigants is crucial as the case progresses because the court will adjourn the case month to month to see how the children are faring with the parents. The courts are people so they judge you every time you go to court and may make informal assessments as to how you are doing. One of the things a court looks at is the ability to foster a good relationship with the parent who is not the custodial parent. Be sure you encourage visits with the other parent unless there is a serious reason why you should not do so. But never act without permission of the court or counsel. For instance, in that instance, if you learn that one parent is abusing drugs or alcohol tell your attorney so they can make a motion to the court to suspend visits or to make visits supervised pending further investigation. Never let a lot of time go by before you act. If there is an extant order of custody in favor of a parent and there has been a significant change of circumstances you can apply to modify the present order in your favor. In making a final Order of Custody the courts will look to what is in the best interests of the child and will take into consideration things like who is the primary caregiver, how long have the children resided with a particular parent, which parent can best provide for the children’s emotional, medical and educational needs. While finances do come into play the courts more importantly place emphasis as they should on such factors as which of the parents provide direct care and nurture and guide the children in all aspects of their lives. In some instances, both parents may fit the bill and then a court can order joint custody. Lastly, there are certain procedures you must follow if the parents were never married. For instance, if you were never married but you are sure that the child is yours then you should go to Family Court and apply for an Order of Filiation to establish paternity, especially of you were not present at the birth of the child in question and you never signed an acknowledgment of paternity at the hospital. Only after paternity is established may you apply for child custody in New York. Must I sue for custody? October 23, 2018
MUST I SUE FOR CUSTODY?
Many of my clients do not understand that in order to get a divorce judgment the parties must first settle their issues of child custody. That means when you commence an action for divorce you must include in the Wherefore clause a request for custody. In doing so that does not necessarily mean you want exclusive custody but it is a good idea to start with suing for custody in order to protect your rights moving forward. An alternative might be to sue for joint custody especially where both parties can get along and have no problem with talking about the best interests of the children and making joint decisions. There are two parts to a custody determination. The first point of inquiry is decision making and the second point of inquiry is the location where the children will the children reside. That means that the parties need to decide who will be doing the decision-making as to the children and what will the custodial schedule look like. The Courts in New York favor joint custody wherever possible but sometimes the acrimonious relationship of the parties poses a problem such that only one party can be awarded custody. Many parties think that because their spouse agrees to a divorce that they can get an uncontested divorce. That presumption is patently false is the parties do not deal with the issues of custody and child support and spousal support in the body of the Judgment roll. If you are having problems deciding the above issues then you will most likely have to seek judicial intervention to move the matter forward. In court the Judge will typically appoint a lawyer for the children and sometimes order psychological evaluations for the children and parties. Parties are cautioned that this can be very expensive but worse, it can cause a lot of stress on the children so if you can solve the issues of custody beforehand, do so. However if there are serious issues of unfitness then it is probably best to ocnduct an investigation. Many fathers are under the false impression that the Mothers always get custody. This is incorrect because the laws are gender neutral and more and more father s are suing for custody if they feel they are best suited to be the primary caregiver for the children.
Can I file for Divorce in New York State if I just moved here? July 24, 2018
I have lived in New York for less than one year. Can I file for divorce in New York? In New York you can only count on certain residential requirements before filing an action for divorce. They are specific and set forth in the Domestic Relations Law. You are permitted to bring a divorce action in New York but the best way to do it is to be sure you comply with the residence requirements or your case could be thrown out of court in which case you will not be granted a divorce. A court has the power to grant you a divorce, separation or annulment under the below enumerated categories: 1. The Parties must have been married in New York State and also one or the other of the two parties is presently a resident of New York when the action is started for a period of one (1) year entire year contiguously prior to the filing of the divorce, annulment or separation action. 2. Both spouses resided in New York, but not necessarily married in New York, as husband and wife and one of the spouses was a resident of New York State at the time of the filing of the divorce, annulment or separation action for one (1) year period just prior to the commencement of the action. 3. The grounds of the divorce action occurred in the State of New York and either party was a resident of New York State continuously for one (1) year period immediately prior to the filing of the action for divorce, separation or annulment. 4. The grounds or cause of action occurred in New York and both parties were residents of this State when the action for divorce, annulment or separation was commenced. 5. Either of the spouses were a resident of the State of New York for a period of at least two (2) years or more immediately prior to the filing of the divorce annulment or separation action. If you take a look at number “4” above it is very interesting because let us say the husband and wife lived in New York for two months but the husband assaulted the Wife and treated her in a cruel and unusual manner. In this example, the Wife does not have to wait for one or two years before filing her action for divorce, annulment or separation, she can do so immediately. Other than that, the waiting period is usually one to two years, depending on whether all of the other requirements in each of the above paragraphs are met. Because of the strict residency requirements be sure to tell your New York divorce lawyer about the circumstances of your residency before hiring a lawyer to pursue your divorce as it is critical for the lawyer to know whether you meet the criteria for filing an action for divorce. Also, just because the parties do not meet the residency requirements it does not necessarily mean you cannot negotiate an amicable settlement with your spouse out of court. You may also opt to file in a State where you meet the residency requirements so long as all of your financial issues, support issues and custody issues are resolved In thinking about filing for divorce in New York you must also be aware that even though you might be able to get a judge to give you a divorce sometimes the Court in New York has to defer to another State in deciding the ancillary issues of custody and equitable distribution because there are other laws that dictate whether the Court in New York has the power to dispose of all of the issues in your case. For instance, let us say you own real property in another state and you are contesting how to distribute that property. You will then have to file a separate action in that State for equitable distribution since New York would not have in rem jurisdiction to decide that matter for you. In sum, this is for informational purposes only and shouldn’t be construed as legal advice so you should always consult with a lawyer before making any decisions as to divorce.
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